Fragile Progress: Part 2

Upholding the law

Other governments, like those headed by Slovenia’s “pro-Trump populist”⁸⁰ Prime Minister Janez Janša from 2020-2022 and Greece’s conservative Prime Minister Kyriakos Mitsotakis, also adopted illiberal practices, from media capture to public denigration of critical journalists.⁸¹

Yet the European Union can only act in those areas where its member states have authorized it to do so. The European Commission has been given so-called “exclusive competences”⁸² on competition policies and trade, for instance, but it shares these powers with member states on justice and fundamental rights, which cover press freedom. The challenge has been how to push the interpretation of the treaties to uphold rights in ways that might not be open to legal dispute. 

“We need new laws which draw on the European Commission’s own core and unquestionable prerogatives,” a top EU official dealing with Hungary told CPJ in mid-2022, not long after the authorities blocked the broadcasting license of Budapest-based Klubrádió [radio] station.⁸³ “The only time Orbán had to backtrack is when we applied EU market regulations in order to protect Klubrádió, that he had in his crosshairs,” said the official. “The Commission argued that the power of some pro-Orbán media is such that it effectively prevents others to enter into the market, which is in clear violation of the rules on competition and cross-border investments.” Klubrádió however still ended up losing its license.⁸⁴

Using internal market rules as a legal basis requires, however, some innovative thinking. “If, for instance, a member state hampers media investigations into corruption, its action might be considered a violation of transparency rules necessary to the internal market,” a senior European Commission official told CPJ. “If it misuses EU funds to reward friendly media with state advertising it may be a breach of internal market regulations.”  Justice Commissioner Didier Reynders told Le Soir in July 2022 that the Commission was in the process of developing a wider competence on this issue.  “We can act on media regulators and broadcasting licenses, or by regulating public authorities’ communications or advertising because the allocation of resources by these authorities may totally unbalance the relations among the media.”⁸⁵  Marius Dragomir, founding director of the Santiago de Compostela-based Media and Journalism Research Center, told CPJ that these were crucial questions, “as media capture by oligarchs and the scooping [hijacking] of state advertising and subsidies drastically limit new investments from other private or not-for-profit actors.” 

In the struggle to find ways to protect media pluralism and independence in the EU, the European Commission announced its proposal for the European Media Freedom Act (EMFA) on September 16, 2022. ^86​​ Using EU market law as its basis, the draft regulation seeks to broadly defend journalists from “undue interference” by safeguarding editorial independence; protecting journalists against abusive spyware; funding and creating guarantees to ensure public service⁸⁷ media is independent; and improving transparency around media mergers, ownership, and state advertising.  The spirit of the text was clearly to limit or curb the financial and political capture of media by certain EU governments or business interests connected to those governments. A proposed independent European Board for Media Services comprised of national media authorities would provide oversight and assist the Commission.⁸⁸  The Commission also adopted a complementary recommendation to, amongst other things, encourage internal safeguards for editorial independence and transparency around media ownership. “The idea is to create common standards related to the issues identified in the rule of law reports,” according to Marie Frenay, an adviser to Commissioner Jourová.  

“Information is a public good. We must protect those who create transparency – the journalists.”

– Ursula von der Leyen, president of the European Commission

Many press freedom advocates welcomed the proposal, saying that linking internal trade law with press freedom was a smart and significant step forward, placing press freedom front and center.  “It is the first time the Commission considers news as a public good,” European Federation of Journalists Director Renate Schroeder told the European Journalism Symposium in Brussels in November 2022. The proposal also gave it a pan-European dimension. “Press freedom is still often considered as a national or even a local issue. We must get out of this national fragmentation,” said Jean-Pierre Jacqmin, news director at the French-language Belgian public broadcaster RTBF.  “If passed, this new law would represent a major shift in EU policy on the media, and a welcome shot in the arm for democracy across the Union,”⁸⁹ wrote Damian Tambini, distinguished policy fellow in the Department of Media and Communications at the London School of Economics.

However, journalists and press freedom groups also identified a number of limits and ambiguities. These include questions on whether the law goes far enough on media ownership transparency,⁹⁰ whether requirements could apply to the full breadth of possible media service providers, how it could be enforced, and how information could be made publicly accessible. 

In addition, would the proposed European Board for Media Services⁹¹ be independent given that it would be made up of representatives of national media regulatory boards? Although Article 53 of the Audiovisual Media Services Directive clearly requires these boards’  independence from governments, “some of these national bodies, like in Croatia, are under political pressure,”⁹² warned Maja Sever, president of the Croatian Union of Journalists and of the European Federation of Journalists. Another concern: what would guarantee that the board’s actions and opinions were independent of the European Commission? And how would the board work with press freedom groups as part of a proposed structured dialogue?

Another challenge is ensuring that the EU’s proposals meet the standards and interpretation provided by the European Convention on Human Rights (ECHR) and case-law from the European Court of Human Rights on protecting journalists and their sources, including from all forms of spyware and surveillance. Dirk Voorhoof, a European media law expert at Ghent University and a member of Columbia University’s global freedom of expression network, notes that the provisions intended to protect journalistic sources risk being “a step backwards” because they “[do] not guarantee the level of protection that all EU member states should already respect as developed and applied in the well-established case law of the European Court of Human Rights (ECHR) on this topic.”⁹³  Voorhoof has called for more precise judicial safeguards, like court orders or proportionality requirements, to be included in the final text. The European Data Protection Supervisor has also said it does not go far enough on clarifying journalists’ protections.⁹⁴

One article of the text⁹⁵ proposes that media outlets declare themselves as media in order to better engage with online platforms in “meaningful dialogue…with a view to finding an amicable solution” on content-removal decisions. This approach has divided opinions amongst press freedom and disinformation groups about how such a system would work in practice, including potentially creating loopholes for media outlets considered as seeking to spread disinformation.⁹⁶

Some skeptics also criticize the lack of penalties for noncompliant member states.  “It leaves too much ground to member states,”⁹⁷ said Maria Diaz Crego, an analyst at the European Parliamentary Research Service.

The draft legislation will have to navigate between the institutions to be adopted by the Council and the European Parliament and confront a number of member states that feel the Commission has gone beyond the limit of its mandate. Some governments, in particular Germany, which is under pressure from its media publishers, unsuccessfully raised concerns about the legal basis of the act.⁹⁸  

Journalists and press freedom groups share a strong consensus on core issues like violence against the press, SLAPPs, or surveillance. But journalist unions, member states and media owners do not necessarily see eye to eye on the question of editorial independence, public service media, media concentration, or ownership transparency. Finding common ground between divergent group interests and different levels of tolerance for interference will be yet another balancing act for the EU.

Collateral damage

Journalists’ organizations and press freedom advocates have welcomed many of the European Commission’s current initiatives.

However, other measures – such as digital legislation – have raised fears of harmful side-effects for the media. While claiming virtuous objectives –  like combating online child abuse,⁹⁹ fighting terrorism,¹⁰⁰ supporting criminal investigations,¹⁰¹ or protecting privacy¹⁰² –  journalists and digital rights activists fear that the implementation of some provisions may adversely impact media freedom by potentially paving the way to online censorship or undermining reporters’ source confidentiality or their ability to work effectively or securely. 

On content moderation, media organizations are particularly concerned about the risks of relying on private tech companies to defend press freedom when they decide whether to delete or keep information. The specter of crushing fines, journalists fear, may lead these companies to err on the side of excessive caution and unjustified censorship. “When it comes to content regulation, the EU should be careful not to open space for national governments to misuse the rules,” the Media and Journalism Research Center’s Dragomir told CPJ. “It really can have a chilling effect on journalism or freedom of expression.” 

Dragomir notes that well-intentioned measures may in fact be misused by illiberal actors. “The much-vaunted GDPR [General Data Protection Regulation], a law meant to protect EU citizens’ personal information, includes a journalistic exemption, but it has nonetheless sometimes been misused by governments to block publication or deny requests to access information,” he told CPJ.

Little by little, the EU had to stop pretending that press freedom was none of its business.

In 2020, for instance, a Hungarian court ordered the recall of the issue of Forbes Hungary on the country’s 50 richest people after one company complained that the magazine had violated the GDPR by listing the company owner’s name without his permission.¹⁰³ 

This was not an isolated case. 

In October 2020, a Hungarian court issued a gag order that cited the GDPR to prevent the weekly Magyar Narancs newspaper from publishing an article on Budapest-based soft drinks company Hell Energy and its owners.¹⁰⁴  “Due to incomplete, confused or overly narrow national implementations of this journalistic exemption, the GDPR is increasingly discovered as an instrument to discourage, or punish, critical news coverage,” writes Melinda Rucz, a researcher at the Institute for Information Law (IViR) at the University of Amsterdam. “GDPR-based litigation and administrative proceedings emerge as new forms of strategic litigation against public participation (SLAPP), with dangerous implications for the protection of public interest journalism in Europe.”¹⁰⁵ 

In late 2019 Romanian authorities filed a complaint under the GDPR, ordering the investigative outlet Rise Project to reveal its sources on a report alleging corruption involving Liviu Dragnea, then president of the ruling party, or pay a fine of up to 20 million euros (US$23 million).¹⁰⁶

The GDPR has also been used to obstruct journalists who want to get access to CCTV footage for their investigations. “On several occasions, in Slovakia for instance, I went there immediately to collect evidence on attacks on the press. But I was refused access to CCTV,” Vlad Lavrov, a senior editor at the Organized Crime and Corruption Reporting Project (OCCRP), told CPJ. Although journalists can express concern about the misuse of the GDPR to the European Commission,¹⁰⁷ to date there has been no formal infringement procedure against these offending countries for press freedom abuses. 

Encryption

Recent years have seen a growing tension between free speech advocates and the EU over efforts to obtain expanded access to end-to-end encryption of electronic communications.
For journalists, encrypted messages are essential to obtain confidential information and protect their sources. For governments and law-enforcement agencies, encrypted messages provide a hiding place for criminal activities like terrorism or child sexual abuse.

The European Commission says it is committed to protecting children by proposing new legislation to help online service providers in detecting online child abuse, but in doing so risks opening the door for the automated scanning of everyone’s private communications. Civil society organizations – including CPJ – have called on the EU “to not interfere with encryption services, which protect both cybersecurity and journalists’ ability to communicate with their sources securely.”¹⁰⁸

In a position paper published in October 2022, international advocacy network European Digital Rights (EDRi) warned against the potential collateral damage of the European Commission’s proposal for a Child Sexual Abuse Regulation. “The proposal is a fishing exercise,” said EDRi, “treating all internet users in the EU as potential child sexual abuse perpetrators. By casting a wide net instead of starting with reasonable suspicion of individual perpetrators, the proposal turns the presumption of innocence on its head and inverts the rule of law, due process and the right to the presumption of innocence.”¹⁰⁹

The proposed regulation, noted EDRi, would interfere “with a wide range of other rights and freedoms, including free expression.” As pressure mounts to conclude negotiations on the proposal before the 2024 elections, critics – including within the EU institutions – are vocal in their complaints that the Commission has failed to meet the test of proportionality.¹¹⁰  It is now up to the European Parliament (and member states) to weigh in with a counter-strategy that allows for both the protection of child rights and encryption.¹¹¹